Picture the following scenario: California voters elect a Superior
Court Judge who was formerly a Los Angeles County Deputy District
Attorney who prosecuted O.J. Simpson in his criminal case. Some months
later, Simpson is arrested and charged with grand larceny in an
unrelated matter, and his case is randomly assigned to that judge's
chambers. Hopefully, the judge would recognize the possibility that she
was likely biased against Simpson, or at least would appear so to many
people, and would recuse herself. However, for whatever reason, she
presides in Simpson's case. The defendant is convicted, and after
exhausting all of his state remedies, files a habeas corpus petition in
federal court alleging a due process violation. Simpson's lawyers
posit that although the trial record shows no overt bias, Simpson was
unable to get a fair trial because the judge may have felt that her
failure to convict Simpson in his murder trial allowed Simpson to commit
this second crime.

Could the judge divorce herself from her past involvement with Mr.
Simpson and her intimate knowledge of the crime previously alleged?
Could she conduct a trial comporting with the due process promise of a
neutral adjudicator? Does it matter whether or not the appearance of
injustice might compromise her participation in the grand larceny trial?

The question of whether a defendant has a due process right not to
be tried by a judge who has previously prosecuted him on an unrelated
offense has not been directly addressed by the Supreme Court. However,
the scenario strikes at the heart of our notions of fairness and
judicial impartiality.(1) Whatever else due process guarantees,
especially in the criminal context, its most vital element is a neutral,
independent adjudicator.(2)

Since the advent of legal realism and modern psychology, it is
almost universally recognized that no one's mind is a tabula rasa,
and that judges do not live in ivory towers.(3) Even when a party has no
direct connection to a judge, subtle and unspoken factors may impact the
decision-maker's rulings. As Professor Leubsdorf points out:

To decide when a judge may not sit is to define what a judge
is.... One can scarcely advance the ideal of judicial impartiality
without feeling doubts. We all take it for granted that personal values
and assumptions help shape every judge's decisions. Suggesting that
a judge could escape her prepossessions sounds like a throwback to the
days when people believed ... that judges deciding constitutional issues
placed a challenged law next to the Constitution and checked whether the
one would fit inside the other.(4)

When a judge has some positive or negative connection to a party,
or the judge is tempted to make rulings based on extra-judicial factors,
a potentially impermissible bias is added to these accepted
"values, assumptions and prepossessions,"(5) and may poison
the due process well. As the New Hampshire Supreme Court has stated,
"[i]t is the right of every citizen to be tried by judges as
impartial as the lot of humanity will admit."(6) Even if the actual
outcome is not tainted by bias, the appearance of justice is compromised
by the potential for bias.

This Comment examines whether a criminal defendant can obtain a
truly neutral adjudication or a trial satisfying the "appearance of
justice" when the presiding judge has previously prosecuted him in
an unrelated matter. I do not suggest that judges who previously served
as prosecutors are undesirable.(7) On the contrary, those involved in
judicial selection often see prosecutorial experience as a valued
asset.(8) It is only in specific, easily identifiable circumstances
where there is a direct conflict between the judge and the defendant
that prosecutors-turned-judges should disqualify themselves or be
disqualified. Mandated disqualifications should be limited, as many
conscientious judges will disqualify themselves if they recognize the
problems that such trials represent both for individual defendants and
the whole system.

First, this Comment reviews Supreme Court decisions defining a
neutral and independent adjudicator. Second, because the Court has not
addressed whether defendants have a due process fight not to be tried by
a judge who has previously prosecuted them, this Comment reviews lower
court opinions to show that their inconsistency with the Supreme
Court's definition of due process fails to protect defendants in
this situation. Third, this Comment briefly examines the differing roles
of prosecutor and judge. While there are areas where skill and
experience as a prosecutor may benefit a judge, there are also facets of
the prosecutorial function that can potentially cause serious tension
between the two roles. Fourth, this Comment focuses on two major
failings of judicial review in this area. One is the frequent
underestimation of the influence trial judges have over the outcome of
trials. This influence may unfairly prejudice defendants, even
unintentionally, by permitting judges who have previously prosecuted the
defendant to adjudicate a new case against the defendant. Also,
reviewing courts have failed to reconcile the non-instrumental values
due process serves, such as participation, justification and openness,
when allowing a defendant to be tried by a judge who has previously
prosecuted him. Fifth and finally, this Comment proposes that courts
should find that when a judge played a tangible role in previously
prosecuting the defendant before them, the defendant has a due process
right not to be tried by that judge.

II. WHAT COURTS HAVE HELD CONSTITUTES A NEUTRAL ADJUDICATOR

Before examining the specific question posed by this Comment, it
is necessary to understand the types of judicial conflict of interest or
bias the Supreme Court and lower federal courts recognize as violating
an individual's due process.

The Supreme Court's first pronouncement on this issue remains
its most oft-quoted: a due process violation occurs when some temptation
would lead a judge "not to hold the balance nice, clear and true
between the State and the accused...."(9) In Tumey v. Ohio, the
Court invalidated a scheme under which an unlawful possession of liquor
charges was adjudicated by a town mayor empowered to assess fines for
culpability.(10) Per a state statute, the proceeds of the fine were
split evenly between the municipality and Ohio's state
treasury.(11) The municipality allowed the mayor to recover his
out-of-pocket costs if the proceeding resulted in a conviction.(12)

Despite the absence of any evidence showing actual bias by the
mayor in adjudicating Tumey's case, a unanimous Supreme Court held
that the scheme violated Tumey's Fourteenth Amendment due process
rights.(13) The Court was apparently untroubled by the lack of specific
evidence showing the mayor's partiality--it recognized the inherent
difficulties such a showing would place on both the Tumey and the
mayor.(14)

In deciding Tumey, the Supreme Court stated what has become a
central, although somewhat opaque, tenet of due process neutrality:

Every procedure which would offer a possible temptation to the
average

man as a judge to forget the burden of proof required to convict
the

defendant, or which might lead him not to hold the balance nice,
clear and

true between the state and the accused, denies the latter due
process of

the law.(15)

In defining the outer limits of what "possible temptation"
might induce a judge "not to hold the balance nice, clear and
true," the Tumey Court set no threshold of incentive automatically
triggering a due process violation. In the absence of a bright line, and
acknowledging the difficulties of computing such a calculus, "it
seems reasonable to conclude that any financial temptation, regardless
of how indirect or insubstantial, presents a possibility of
temptation."(16)

While Tumey's holding did not absolutely limit the
constitutional due process protection of an unbiased adjudicator to
cases in which bias, or the appearance of bias, stemmed from financial
temptation, the Court came close in dicta. In finding a constitutional
violation in the case before it, the Court stated that "not all
questions of judicial qualification ... involve constitutional validity.
Thus matters merely of kinship, personal bias, state policy, and
remoteness of interest, would seem generally to be matters merely of
legislative discretion."(17) However, because the mayor's
interest was "direct, personal ... [and] pecuniary,"
Tumey's due process rights were violated.(18)

In 1955, the Supreme Court deviated from this focus on financial
conflict of interest in In re Murchison, a decision authored by Justice
Black.(19) Relying on Tumey, the Court held that a Michigan judge
sitting as a one-man grand jury could not punish witnesses for contempt
for conduct arising out of the grand jury hearings.(20) The Court ruled
that upholding such a system permitted a judge to serve as judge
"in his own case and no man is permitted to try cases where he has
an interest in the outcome.(21) The Court took pains to note that while
the "interest" triggering the judge's disqualification
escaped precise definition, it did not necessarily have to be financial
temptation.(22) Most strikingly, Justice Black wrote:

A fair trial in a fair tribunal is a basic requirement of due
process.

Fairness of course requires an absence of actual bias in the trial
of

cases. But our system of law has always endeavored to prevent even
the

probability of unfairness.... Such a stringent rule may sometimes
bar trial

judges who have no actual bias and who do their very best to weigh
the

scales of justice equally between contending parties. But to
perform its

highest function in the best way, "justice must satisfy the
appearance of

justice."(23)

In other words, to satisfy due process guarantees, even the
possibility of unfairness as manifested through a potentially biased
adjudicator must be prevented. Equally important for defendants faced
with trial by a judge who previously prosecuted them, the basis for
bias, or the appearance of bias, was not limited to financial
motivation.(24)

However, in the 1970s two important cases reaffirmed and
underscored the Supreme Court's focus on a judge's potential
financial bias as a due process disqualifier.(25) In Ward v. Village of
Monroeville, the financial temptation again revolved around a mayor
empowered to sit as judge with the fines he assessed contributing a
substantial portion of the town's fisc, and thus his wages.(26) As
in Tumey, the Court rejected the town's scheme despite the absence
of any actual bias on the mayor's part.(27)

Similarly, Connally v. Georgia featured a system that offered
state Justices of the Peace $5.00 for issuing search warrants. The
Georgia system provided no compensation for denial of the warrant.(28)
In overruling the Georgia Supreme Court, the United States Supreme Court specifically rejected the idea that a $5.00 fee amounted to a de minimis violation, thus invalidating Georgia's "fee for warrants"
system.(29)

Perhaps because neither case presented the occasion to consider
the issue, the Court did not reiterate its prior limitation of due
process protection to cases involving financial temptation. Nothing in
either decision suggested a narrowing of In re Murchison's broad
language. However, in Aetna Life Insurance Co. v. Lavoie,(30) a divided
Court reinforced the financial temptation limit on due process
protection.(31) The facts of Aetna showed two kinds of bias against the
defendant.(32) First, the Alabama Supreme Court justices were alleged to
be predisposed against the defendants (insurance companies) by reason of
personal animus.(33) Second, and more significantly, there was a
potential financial interest on the part of Justice Embry, who cast the
deciding vote in what was a precedent-establishing case.(34)

In dismissing Aema's claim that Justice Embry's
previously expressed personal antipathy toward insurance companies
warranted a new trial, Chief Justice Burger pointed to both the language
in Tumey, which suggested that only financial bias could constitute a
due process violation, and supporting common law history.(35) Chief
Justice Burger limited this portion of his decision to Aetna's
specific facts.(36) The Court did not completely shut the door on
non-monetary bias as a constitutional issue however, noting that courts
should only find due process violations "in the most extreme cases
... and [Aetna's] arguments here fall well below that level.(37)
Justice Embry's financial interest violated Aetna's due
process because it "had the clear and immediate effect of enhancing
both the legal status and settlement value of his own case."(38)

Justice Brennan expressed strong disagreement with the
majority's emphasis on financial conflicts of interest in a
concurring opinion:

I do not understand that ... the Court states that only an
interest that

satisfies this test [the interest be direct, substantial and
pecuniary]

will taint the judge's participation as a due process
violation.

Nonpecuniary interests, for example, have been found to require
recusal

as a matter of due process ... The participation of a judge who
has a

substantial interest in the outcome of a case ... necessarily
imports a

bias into the & liberative process. This deprives litigants of
the

assurance of impartiality that is the fundamental requirement of
due

process.(39)

The Supreme Court's most recent case involving judicial bias
is Bracy v. Gramley.(40) In Bracy, the Court held that where a habeas
corpus petitioner could rebut the presumption of a judge's probity,
he was entitled to discovery on the question of whether or not the judge
was actually biased against him.(41) Bracy was tried and sentenced to
death in front of a judge who frequently solicited bribes from other
criminal defendants.(42) Bracy's argument was that in cases without
bribery, the judge was "hard" on defendants in order not to
draw attention to his otherwise pro-defendant rulings.(43) Although the
Court noted that Bracy's contention was "speculative,"
because there was so much evidence of corruption,(44) it granted him
discovery to attempt to prove his argument.(45) Despite the difficulties
of proof, the Court held that, "if it could be proved, such
compensatory, camouflaging bias on [the judge's] part in
petitioner's own case would violate the Due Process Clause of the
Fourteenth Amendment."(46)

The Court made no mention of directly overturning Bracy's
conviction and death sentence based on the appearance of unfairness, nor
did it delve into whether on its face the judge's corruption and
possible bias was sufficient to fail the Tumey or Murchison tests. Thus,
while Bracy holds out the possibility that defendants can obtain
discovery, it sheds little light on the question of whether, in the
absence of concrete evidence showing bias, a trial in front of an
"interested" judge can ever be constitutionally infirmed.

Despite Bracy, the distinction between financial and other kinds
of bias (such as kinship or extreme personal antipathy) that the Tumey
and Aetna Courts drew seems misplaced at best. It serves no
constitutional purpose to allow a judge to sit in a case in which her
niece is the defendant, or in which her best friend was the victim of a
crime, but not to sit in a case where a $5 benefit might accrue to her.

One commentator has suggested that the only justification for this
standard is the Court's desire to obtain the advantages of a
"bright-line distinction."(47) The problem with this
distinction is that the bright line seems to have been drawn in the
dark--it excludes cases of potential bias, which may be far more
egregious than those motivated by small financial gain. The result of
this role is that it may be constitutional for "grossly biased
decisionmakers [to be] allowed to try cases."(48)

Notwithstanding the Court's focus on financial bias in Tumey
and Aetna, it is clear from In re Murchison, and Justice Brennan's
concurrence in Aetna, that financial bias need not be the only reason
for judges to be disqualified from presiding over trials. Indeed, In re
Murchison points to the fact that a judge's personal embroilment with a party can, in extreme cases, result in a due process violation.
Moreover, the Supreme Court has never expressly required a showing of
actual bias in order to find a due process violation, and has even
disavowed the need for such a showing.(49) Even the temptation of as
little as $5.00 was sufficient to invalidate a criminal conviction in
Connally v. Georgia.(50)

Yet in light of the Supreme Court's lack of clear guidance in
bias cases, it is not surprising that lower courts do not find it
troublesome when judges sit in cases where they have previously
prosecuted the defendant on unrelated charges. If this situation is
recognized early enough, however, the problem can be avoided in many
states through a peremptory request for a different judge.(51) Where
these challenges are not available, the issue may arise in federal
courts post-conviction, when a prisoner files a petition for habeas
corpus.(52) When a bias allegation is brought in federal court, the
defendant may move for recusal under 28 U.S.C. [sections] 455.(53) This
provides for recusal where a judge's impartiality may be reasonably
questioned or appearsunfair because of prejudice or bias from an
extrajudicial source.(54)

The allegations of bias and the degree of apparent injustice in
these cases varies widely. In some, the convicted defendant has merely
alleged that the prosecutor-turned-judge signed off(55) on a brief or
played a tertiary role in a long ago criminal case. In others, the
history between the defendant and the judge is more substantial, and
thus more troublesome.(56) In all cases, federal appeals court judges
have found there was either insufficient evidence to find bias or no
appearance of unfairness.(57) There are two states whose courts have
reversed the convictions of defendants who were tried by judges who
previously prosecuted them on unrelated offenses. However, those cases
do not specifically rely on the federal Constitution.(58)

In People v. Correlli,(59) a New York appeals court partially ad,
dressed the problem analyzed in this Comment. The judge in Correlli had
previously prosecuted the defendant in an unrelated case.(60) The court
reversed Correlli's conviction even though the judge claimed he
could be entirely impartial, because the "appearance of bias or
prejudice can be as damaging to public confidence in the administration
of justice as the actual presence of bias or prejudice."(61) The
court noted that regardless of how guilty the defendant was, he was
entitled to adjudication from a tribunal free of any possible bias.
Trial by a judge who had previously prosecuted him did not accord
Correlli that right.(62) However, a serious shortcoming in the Correlli
decision was its failure to ground the right to be free from such an
unfair trial in any textual mandate--either constitutional, state
statute or judicial code.

The widest ranging pronouncement on whether defendants have a
constitutional fight not to be tried by a judge who has previously
prosecuted them came in 1979 in. Jenkins v. Bordenkircher.(63) The Sixth
Circuit in Jenkins refused to establish a per se rule prohibiting judges
from sitting in cases where they had previously prosecuted the
defendant.(64) In Jenkins, the trial judge had prosecuted the defendant
on four occasions in a span of nine years, with the last prosecution
coming only five years prior to the instant trial.(65) The charges in
the case at hand were armed robbery and murder; the previous charges
ranged from felonies such as brandishing a murderous weapon to grand
larceny.(66)

In reaching its decision, the Sixth Circuit found significant the
fact that the charges in the murder trial "were of an entirely
different magnitude" than the charges on which the judge had
prosecuted the defendant.(67) The court did not rule out the possibility
that a closer connection between the previously prosecuted crimes and
the crime at hand might have compelled a different result.(68)

The Sixth Circuit refused to consider granting a habeas petition
based on the defendant's argument that irrespective of actual bias,
an inherent temptation existed for a judge to be prejudiced against a
defendant he previously prosecuted.(69) Instead, the court combed the
record for evidence of actual bias and found none.(70) The court praised
the trial judge for putting all motions and rulings on the record, not
holding unreported bench conferences or proceedings in chambers and
fully explaining his rationale for "each ruling of
consequence."(71)

In addition to Jenkins, other lower federal courts have refused to
find cognizable grounds for due process violations in a number of
contexts where no actual bias or substantial temptation for bias was
shown. For example, in Murphy v. Beto,(72) a court denied habeas corpus
relief to a petitioner where the trial court judge was the district
attorney at the time of a prior prosecution, but there was no evidence
he had played an active role in the petitioner's trial."(73)
Similarly, in Layer v. Lyles,(74) a district court found no due process
violation where the presiding trial judge was both a prosecuting and
defending attorney for the defendant in a previous trial.(75) Unlike
Jenkins, however, in Layer the prior trials were for crimes of
substantially the same magnitude as the instant case.(76) Both Lyle and
Murphy essentially rejected the "appearance of fairness" test
in favor of an actual bias test.(77)

In a more recent case, where similar but not identical due process
concerns were at stake, the Tenth Circuit laid out a two-step test that
more accurately reflects the Supreme Court's current approach of an
"appearance of fairness" test.(78) The Tenth Circuit attempted
to reconcile divergent due process standards on judicial bias. On the
one hand, it noted the requirement that a judge be "actually biased
or prejudiced against the petitioner,"(79) and on the other it
noted the Supreme Court's "appearance of bias" standard
in In re Murchison.(80) Thus, the lower court allowed the petitioner to
establish a due process violation in one of two ways.(81) He could show
that the judge was actually showing bias, or he could demonstrate that
the appearance of bias created a "conclusive presumption of actual
bias."(82) Because there was no contention of actual bias, the
court examined the standards under which the claim of a conclusive
presumption of bias could be maintained.(83)

The key factor was whether an incentive for actual bias existed.
The court strictly interpreted the Supreme Court's Tumey analysis,
which suggested that the incentive for bias is almost exclusively
financial.(84) The trial judge's kinship relationship to the
prosecution was held irrelevant because the judge did not rule on
motions or objections made by his son.(85) The only benefits accruing to
the judge would be "feelings of pride and
satisfaction"--matters not sufficient to create due process
violations.(86)

Without further inspection, none of these rules or cases may
appear intuitively troublesome. However one case which has adopted the
standards discussed above reveals reason for serious concern. That case,
Del Vecchio v. Illinois Department of Corrections,(87) highlights the
danger for a potential deprivation of rights when there are no clear
standards for what constitutes a due process violation.

In 1979, George Del Vecchio was tried and convicted of murder,
rape, and deviate sexual assault and sentenced to death in Cook County
Criminal Court.(88) The presiding judge, Louis Garippo, had successfully
prosecuted Del Vecchio on murder charges fourteen years earlier in a
highly publicized and sensationalized case.(89) Judge Garippo's
participation in the second case was troublesome not only because of his
prior prosecution of the defendant, but because as judge, he ruled on
the admissibility of evidence and testimony from the first murder
case.(90)

Judge Garippo's level of participation in the earlier
prosecution was hotly disputed between the majority and dissenters in
the en banc decision (Del Vecchio II).(91) The majority maintained that
Judge Garippo's participation in the prosecution was tertiary, and
that the few decisions he made were pro-forma rather than exercises of
discretion or judgment.(92) In contrast, the dissenters in Del Vecchio
II accused the majority of obfuscating Judge Garippo's role in the
first murder trial, instead suggesting he was "intimately
involved" in that trial.(93)

Specifically, the dissent maintained that Judge Garippo, in his
previous role as prosecutor, had been involved in every major decision
in the case.(94) In particular, Garippo's exercise of prosecutorial
discretion in charging Del Vecchio as a minor in the first murder
resulted in Del Vecchio's early release from prison, allowing him
to kill again.(95) While much in this case turned on which
characterization of the facts was accepted, stripped of the factual
dispute, the opinions in Del Vecchio II still hold much interest.

One important issue Del Vecchio II addressed was whether the
appearance of bias itself created a necessity for recusal.(96) The
majority's interpretation of the Supreme Court "appearance of
justice"(97) language was extremely constricted. The Del Vecchio II
court found that language to stand for the proposition that "judges
must sometimes recuse themselves when they face possible temptations to
be biased, even when they exhibit no actual bias against a party or
cause,"(98) rather than the more stringent standard that "bad
appearances alone ... require disqualification to prevent an unfair
trial."(99)

Another controversial aspect of the majority opinion suggested
that even if Judge Garippo was tempted to be biased, the temptation did
not amount to a due process violation because it was not financial.(100)
Moreover, the court contended that even if Judge Garippo gave George Del
Vecchio a "clear break" in the first trial, the risk of bias
would still be insufficient to mandate disqualification.(101) While bias
may have existed, it was not "substantial."(102) The court
rejected the notion that an average judge in Garippo's situation
would violate his oath of impartiality.(103) Suggesting bias in such a
situation would be "inconsistent with the presumption of honesty
and integrity of those serving as adjudicators."(104) The majority
warned against an exaggerated sense of propriety and erecting barriers
in the way of Illinois' attempts to give "an unrepentant and
twice convicted murderer ... a sentence the people of Illinois deem
appropriate"--i.e, the death penalty.(105)

As for actual bias, the court held that the record showed
none.(106) While this conclusion could be interpreted as evidence that
Judge Garippo erected a firewall between his previous prosecution of Del
Vecchio and the instant case, it does not necessarily prove that he did.
Actual bias can be extremely difficult to prove. If the system operates
under the premise that fair decision-making is not compromised by Judge
Garippo's actions, it will reconcile the facts it sees in front of
it with that view. In Del Vecchio I, the court noted that:

If the judge is silent [and there is no obvious bias in the
record]

there is no proof of actual bias. And if the judge does say things

that sound partial, there is still no evidence of bias because

[in the mind of skeptics] if the judge were really partial, he
would

have been smart enough to remain silent.(107)

The en banc panel majority provoked two pointed dissents.(108)
Judge Cummings, the author of the Del Vecchio I majority, wrote that
Judge Garippo's participation violated George Del Vecchio's
due process rights in two ways. First, Judge Garippo was forced to sit
in judgment of his own decisions as a prosecutor.(109) Second, Garippo
heard a case in which it would have been natural for him to hold a
grudge against the defendant.(110) Judge Cummings posited that when
faced with a defendant like Del Vecchio, any judge in Garippo's
position "would have felt a strong personal connection to the
case."(111) Garippo apparently felt that Del Vecchio's
recidivism was a personal affront to him, and that Del Vecchio had
"dirtied his sweatshirt," by committing the second murder
after Garippo's office had treated him leniently.(112) Judge
Cummings' dissent in Del Vecchio II stressed that while he did not
necessarily see evidence of actual bias, the appearance of bias
overhanging the trial was so strong as to require that Garippo be
disqualified.(113) The test Judge Cummings suggested was whether a judge
"under a realistic appraisal of psychological tendencies and human
weaknesses ought not to have presided" over a trial.(114) He wrote:

A rule that requires recusal when the appearance of bias is as
strong as it

is in this case, without requiring an independent showing of
actual bias,

serves many ends ... such a rule protects the accused from the
danger of

unfair judging. It maintains for the benefit of society the
appearance of

justice so necessary to the continued esteem of the judicial
system.

Moreover, it protects judges ... from unseemly excursions into
their

psyches [because they did not follow this rule].(115)

In a separate dissent, Judge Ripple criticized the majority for
its "underestimation of the effect that considerations other than
financial advantage can play in skewing judicial
impartiality."(116) In addition to the personal emotions Del
Vecchio might have aroused in Judge Garippo, electoral motivation might
skew impartiality as well. As a trial judge in Illinois, Judge Garippo
was required to run for reelection to continue serving.(117) Although
not directly drawing a link between Judge Garippo's trial conduct
and his concern for his own electoral future, the dissent noted that Del
Vecchio's second murder trial "called into question the wisdom
of the decisions that this trial judge had made in the earlier stage of
his career."(118) Pointing to recent American political
history,"(119) Judge Ripple pointed out that "[f]or many, if
not most figures in public life, avoiding a cloud over one's
professional judgment is a great deal more important than financial
gain."(120)

One argument the dissent should have addressed more forcefully was
the majority's assertion that "bad appearances alone [do not]
require disqualification."(121) This argument sets up a straw man.
"Bad appearances"--without any limiting factor--could
encompass so much as to allow challenges in nearly every case.
Republicans trying Democrats, teetotalers trying drunks (but hopefully
not vice-versa), and an endless variety of permutations of judges and
defendants on opposite sides of issues could fall under the rubric of
"bad appearances." How, ever, when the "bad
appearances" involve individuals with particular and identifiable
adversarial experiences towards each other, such as prosecutor and
defendant, the potential for bias should not be sloughed off as
cavalierly as did the majority.

The few circuit cases that have addressed the issue of whether due
process prohibits a judge from sitting in a case where he has prosecuted
the defendant are in agreement that no violation of due process has
occurred.(122) Courts have found no bias in the records in these cases,
despite, at least in one instance, powerful evidence to the contrary,
and despite the Supreme Court's admonition that the appearance of
unfairness can compromise due process as greatly as manifested bias
itself.

III. THE PROSECUTORIAL AND JUDICIAL FUNCTIONS

To properly examine the prosecutor-turned-judge bias, it is
necessary to understand the differing roles of prosecutors and judges,
and why those roles might be in tension in certain cases. The
judiciary's failure to give this tension even cursory examination
is one reason the jurisprudence in this area is so flawed.

A. THE JUDICIAL FUNCTION

Judicial behavior is generally guided by the Code of Judicial
Conduct, set forth by the American Bar Association.(123) The ideal judge
should be neutral and detached, and, in the words of Justice Felix
Frankfurter, "[b]e able to think dispassionately and submerge private feelings on every aspect of the case."(124) Judges should
be open-minded and should not prejudge the facts or law in any
case.(125) Judges are to be detached reasoners, not forceful advocates
for one side or the other in a case.(126) In addition to not prejudging
facts and law, ideally, judges must be completely willing and able to
apply the law equally to all persons.(127)

As human beings, judges may have different temperaments and styles
on the bench and in their writings. However, they must strive to remain
open-minded and fair, lest they run afoul of 28 U.S.C. [sections] 455
or, if they are state judges, their state's equivalent.(128) To
buttress the ideal of fairness, judges are explicitly prohibited from
hearing cases in which they have financial interests,(129) or obtain
knowledge of the evidence through extrajudicial sources, or appear to
have pre-judged the evidence in a case.(130)

B. THE PROSECUTORIAL FUNCTION

The prosecutorial function is to represent the people of the
community in court. As part of the executive branch,(131) prosecutors
are teamed with the police to serve as law enforcement officers.(132)
Certain aspects of the prosecutorial role grant prosecutors virtually
unfettered discretion over individuals suspected of crimes.(133) There
are four distinct elements of the prosecutorial function entailing the
amount and kind of contact with a suspect/defendant that raise concerns
about the prosecutor-turned-judge's ability to grant these
defendants fair trials. These four roles are: first, investigating and
charging a defendant; second, the adversarial role during trial; third,
contact with the media about a trial; and fourth cooperation with the
victim and his family.

First, prosecutors make the decision to charge an individual with
a specific crime--a virtually unreviewable decision left almost entirely
to the discretion of the individual prosecutor.(134) This decision, even
if it never leads to a guilty verdict, can have a devastating impact
upon the charged person's life.(135) It may lead to short-term
incarceration, loss of employment, social ostracism, financial cost, and
tremendous stress on the part of the defendant.(136) The decision to
prosecute is necessarily based on a lower evidentiary standard than that
needed to convict, and may be arrived at through relying on items
inadmissible in court such as police reports, rap sheets, and loyalty to
and concern for the victims,(137) rather than a full balancing of all
exculpatory evidence.(138) In this stage, the prosecutor may familiarize
himself with extremely lurid and grotesque details of the most heinous
crimes. The defendant is often thought of only in the context of
criminal accusations, and as the prosecution turns into trial, evidence
is usually viewed as conforming to the theory of the defendant's
culpability.(139)

The second part of the prosecutorial function, which is
incompatible with giving a fair trial to a specific defendant, is the
prosecutor's role during the adversarial stage of the trial. At
this stage, prosecutors may be forced to paint an extremely negative
picture of the defendant in order to obtain a conviction. Certainly
prosecutors cannot cross certain professional lines--they may not pepper
their remarks with personal opinions, nor are they supposed to inflame
jury passions based on a defendant's immutable characteristics, or
other irrelevant factors.(140) Nevertheless, in court, the prosecutor is
an advocate for the people and against the defendant. Because
"[e]nsuring the infliction of deserved punishment is part and
parcel of the prosecutor's job," the "prosecutor's
attitude toward the defendant in a hard-fought case is seldom benign or
neutral.(141) Thus, many legitimate prosecutions can be deemed
"punitive" in nature.(142) Once his case goes to trial, so
long as he believes in its validity, the prosecutor's job is to
persuade twelve jurors beyond a reasonable doubt that the defendant is
guilty of the crime charged.

In persuading those jurors, the prosecutor may make all reasonable
inferences about a defendant that are supported by the record
evidence.(143) The record may include gory details of crimes, references
to prior bad acts and damning reputation evidence. In closing arguments
and rebuttal, the prosecutor must use his advocacy skills to their
fullest extent in "wag[ing] the war" against the
criminal.(144) If the defendant takes the stand, the prosecutor may
question her credibility on cross-examination.(145)

A third feature of the prosecutorial function raising concerns
about the defendant's ability to receive a fair trial from that
specific prosecutor-turned-judge is prosecutorial interaction with the
media. The media will obviously not seek prosecutorial comment in all
cases. However, in high profile cases, prosecutors often become media
figures.(146) Prosecutors are bound by due process and ethical
constraints not to reveal prejudicial information about the case or
defendant.(147) They may, however, reveal information about the nature
of the crime, or status of an investigation, so long as they do not
"try their case in the press."(148)

Nevertheless, prosecutors cannot ignore the press during a highly
publicized case, lest they lose control of their case, or be
misunderstood in the court of public opinion.(149) Thus, the prosecutor
may leak sensitive and select information by speaking to the media off
the record or not for attribution.(150)

One prominent member of the defense bar accused prosecutors of
using press leaks to generate public pressure to kill plea bargains, to
stir up public condemnation of the defendants, provide graphic and
unflattering confidential information about the defendants, and
generally to "infect [a] jury and salvage what was clearly a dying
prosecution."(151) However prosecutors choose to interact with the
media, press dealings force a prosecutor to invest herself in a case
outside the courtroom, and may intensify the feelings against a
defendant.

Finally, the recent trend in many states towards passing
victims' rights constitutional amendments or legislation assuring
the victim or family of the victim a place along side the government at
a criminal trial or during the investigation may cause tension for the
judge presiding in a case where he has prosecuted the defendant.(152) As
of early 1997, at least twenty-six states had constitutional amendments
requiring that prosecutor's take into account "victim's
rights"(153) and three others had laws requiting or permitting the
same.(154) Under the auspices of these laws, prosecutors may be required
to consult with, or in some cases seek the approval of, the victim or
family about plea bargains.(155) Prosecutors may also be required to
keep victims and their families apprised of the status of the
investigation or trial, and elicit their testimony in a victims'
impact statement post-conviction.(156) While there is not yet an exact
federal analog to these state laws,(157) one federal statute requires
prosecutors to assist criminal victims in obtaining compensation and in
preparing victim impact statements.(158) This intense personal contact
with a victim and/or his family may further personalize the crime the
prosecutor is prosecuting. Thus, the relationship between a particular
prosecutor and defendant may become even more adversarial and emotional.

The job of prosecutor involves at least four roles that may
personalize a criminal action and demonize or dehumanize an individual
defendant whether or not that person is convicted. From the highly
discretionary and unreviewable decision to investigate and indict, to
interaction with the media before, during and after trial, to the
aggressive and necessary courtroom advocacy to win conviction, and
substantial and substantive contact with the victim and her family, a
prosecution is a substantial undertaking. At the very least,
opportunities for bias against the defendant or suspect abound at every
turn.

IV. PRACTICAL AND THEORETICAL PROBLEMS

In examining the practical problems with the current jurisprudence
on due process, it is important to remember that not all bias can be
eliminated. As Judge Jerome Frank noted:

[T]here can be no fair trial before a judge lacking in
impartiality and

disinterestedness. If, however, "bias" and
"partiality" be defined to mean

the total absence of preconceptions in the mind of the judge, then
no

one has ever had a fair trial and no one ever will. The human
mind,

even at infancy, is no blank piece of paper. We are born with

predispositions.... Without acquired "slants," life
could not go on.

Interests, points of view, preferences, are the essence of living
...

[some of these interests] represent the community's most
cherished values

and ideal ... and are part of the legal system itself.(159)

These kinds of preconceptions--"interests, points of view and
preferences"--cannot and should not be eliminated from judges'
minds. They keep our legal system vital and connected with public mores
and morals. Other "interests" that a reasonable judge may hold
spring from personal contact, such as having been involved in
prosecuting a particular individual. When an interest tainting the
appearance of fairness comes from this kind of experience, it poisons
the system.(160) That is not unavoidable bias, and it does nothing to
foster the legitimacy of the legal system. As demonstrated by George Del
Vecchio's case, bias can actually undermine the system by leaving
questions about a judge's motivation, and the propriety of a death
sentence.(161)

Thus, two important issues must be explored: first, how courts
have underestimated how influential even neutral judges are in jury
trials. If neutral judges can strongly influence juries in myriad ways,
common sense dictates that the law should vigorously attempt to exclude
judges with a strong reason to be biased from heating certain cases.
Second, the failure of courts to properly examine their due process
decisions in light of the values due process implicates and purports to
uphold.

A. THE JUDICIAL IMPACT ON THE JURY

Judges play a substantial role in determining the outcome of a
trial. However, it can always be exceptionally difficult for a judge to
maintain neutrality, or for a defendant to challenge a judge's
proclaimed neutrality. The judge may not even know she is biased against
a defendant, or if she is, may incorrectly assume or rationalize away examples of bias in her decisionmaking process. Finally, a past record
of criminal behavior has the potential to be extraordinarily
prejudicial. When the criminal record is well known to the judge because
she personally shaped it as a prosecutor, it is too much to ask a
reasonable person to put that information aside and guarantee a
defendant a fair and neutral trial.

Decisions on whether defendants can truly receive due process from
judges who have previously prosecuted them have failed to fully consider
the role trial judges play in trial outcome. One of the few judges to
consider this issue wrote:

We cannot ignore the influence that the judge retains even in a
jury trial.

I do not refer so much to the ability of the judge to communicate
his

opinions to the jury through raised eyebrows, choice bits of
sarcasm and

questioning of the witnesses that strays into advocacy.... I mean
the

extraordinary ability of the trial judge to shape the trial
itself.... She

decides what evidence the jury may hear ... what legal principles
the jury

must apply, and even, to a significant degree, who will sit on the
jury.

Thus, even when a verdict is not entrusted to her, a judge retains
great

influence, if not directly upon the jury, then upon the myriad
events that

culminate in the jury's decision.(162)

When making all of these decisions, a judge necessarily filters them
through the prism of her perceptions. It would be extremely difficult,
if not impossible, for judges to divorce themselves from their
preconceptions, especially when examining questions of fact.
"[P]hysiological, psychological or emotional mechanisms may prevent
assimilation of all the incoming information, forcing judges ... to
process only those pieces of information that conform to their
preexisting cultural and social biases."(163) By extension, it
seems natural that a prosecutor, who may have developed deep-seated
feelings about a particular defendant through the adversarial
system,(164) would fail to shed those feelings upon becoming a judge,
and would process pieces of information through the prosecutorial prism.
In addition, in an overburdened legal system (such as many state and
federal jurisdictions are) where judges do not have sufficient time to
gather or evaluate information, judges may be more likely to rely on
their own preconceived notions and mold the limited information they
receive to those expectations.(165) Buttressing this, lawyers often rely
on stereotypes, portraying defendants as career criminals or social
deviants.(166) And, as one commentator points out:

[M]ost judges strive diligently to avoid bias ... in making their
decisions

and firmly believe their rulings are free from extraneous
influences. But

psychologists tell us it is easy for persons to rationalize their
behavior;

individuals can almost always find excellent grounds for doing
what they

want to do. Therefore, the bases judges give for their decisions
could be

rationalizations or afterthoughts and not real determinants.(167)

The issue of post-judgment rationalization causes problems from
the very outset of a trial. When the defendant moves at a trial's
inception to have the judge removed from the case for bias, that judge
paradoxically determines the merits of the motion.(168) This raises
concern because:

[W]hen a party claims a judge's known passions and opinions
will prevent her

from deciding according to the law ... the judge can construe the
affidavits

as setting forth conclusions rather than facts [and] can assert a

willingness to set aside extrajudicial views in court....
[W]riting an

opinion in this mode may prop up the judge's sense of her own
rectitude;

reading it often increases one's own dismay that the judge
insists

on sitting.(169)

In one respect, allowing judges to determine their own fitness to sit
in cases makes sense because they have subjective knowledge about their
own bias. However, the possibility of unacknowledged and unseen motives
is troublesome. As the Supreme Court has noted, "when [a] trial
judge is discovered to have had some basis for rendering a bias
judgment, his actual motivations are hidden from review."(170)
Moreover, winning on appellate review is difficult, if not impossible,
because proof of improper motives must often be made inferentially. It
is "incredibly difficult to prove these matters, particularly if
the ... adjudicator resists admitting bias."(171) In light of this,
when "litigants seeking to recuse unfavorable judges file motions,
judges either step aside or resist, with the most biased judges the
least willing to withdraw...."(172)

This is not to suggest that more than a few judges purposely act
with bias against defendants. Nor does this analysis suggest that
prosecutors-turned-judges knowingly hide their motives when they refuse
to recuse themselves in certain cases. However, armed with the knowledge
that judges may make decisions to square with their own preconceptions
of defendants and offer justifications, a more vigorous enforcement of
the "appearance of justice" standard is merited.

A series of articles by Peter David Blanck highlights two issues
of particular concern: the difficulty in obtaining the appearance of
fairness, and the enormous control judges exercise over trials.(173)
Blanck's articles are based on a series of empirical studies showing that the "appearance of justice as reflected in
judges' behavior alone could predict the verdicts returned by
juries, as well as other aspects of juries' decision-making
processes."(174) Blanck also notes the consensus that "juries
accord great weight and deference to even the most subtle behaviors of
the judge."(175) Not surprisingly, according to Blanck, a
judge's behavior is often predicated on his conceptions of the
defendant.(176) Most alarming, judges tend to expect a guilty verdict
when the defendant has a relatively serious criminal history.(177) And,
although criminal history should have no bearing on a determination of
guilt or innocence in an unrelated proceeding, it appears to
"influence judges' expectations for trial outcomes in
predictable ways."(178) Expectations or predictions of certain
outcomes in trials may influence judges to reveal what they think the
trial's outcome should be.(179) This behavior can mm into a
self-fulfilling prophecy and prejudice a jury against the
defendant.(180)

A judge's knowledge of a defendant's criminal
history--ordinarily not available to a jury unless a defendant
testifies--can "reveal to juries [the judge's] underlying
beliefs about defendants through nonverbal channels."(181) The
judge's behavior alone may convey a message to jurors concerning
the defendant's guilt or innocence(182) Studies indicate that this
information relates to a judge's behavior when she instructs a
jury.(183) This behavior influences juries' verdicts more often
than is assumed,(184) particularly in cases where the evidence is
close(185) If this empirical research is accurate, the danger of
allowing defendants to be tried by judges who previously prosecuted them
is obvious, both to the appearance of justice, and in subtler ways, to
the actual fairness of the trial.

Although not addressed in Blanck's study, a judge's own
participation in the creation of the defendant's criminal history
clearly aggravates this problem. In cases such as Bordenkircher(186) and
Lyles,(187) where the judge previously prosecuted the defendant, or Del
Vecchio,(188) where the initial prosecution was for a brutal and
notorious murder, the judge's role in creating the defendant's
criminal record could exacerbate the negative inferences that a detached
judge could draw about the defendant. The "leaks" to the jury
through verbal and non-verbal channels might be more pronounced than in
an ordinary trial,(189) They may be heightened if the judge feels,
consciously or unconsciously, his previous prosecution was faulty in
some way and allowed the defendant lenient punishment, or failed to
convict. In rare instances, these "leaks" may be so flagrant
as to cause an appellate court to reverse the jury verdict.(190)
However, this net's mesh is not fine enough to remedy the problem
defense attorneys face substantial obstacles in winning new trials
because of a judge's "leaks" to the jury.(191) Obviously,
this problem would only be amplified when a defendant like George Del
Vecchio (who did not recall Judge Garippo at the outset of his trial)
chooses a bench trial. If the defendant recognizes the judge, and the
judge chooses to hear the case, she is functionally deprived of a bench
trial.

Given these factors, to ensure both actual impartiality and the
appearance of justice, a strong constitutional rule of recusal is
mandated. A prophylactic shield taking into account the practical
reality that a judge who helped form a defendant's criminal record
through active participation in the adversarial system would alleviate
some of these problems.(192)

V. THE PHILOSOPHICAL UNDERPINNINGS OF DUE PROCESS

In addition to the practical dangers discussed, the current status
of constitutional recusal law fails to account for the participatory,
dignitary and legitimizing functions of the law. To borrow an analogy,
constructing such a due process house without sufficient minimum floors
protecting these interests is no house at all.(193)

There are generally two conceptions of due process: instrumental
and non-instrumental.(194) The protections of a genuinely neutral
adjudicator are essential to all the values served by these conceptions,
including accuracy, equality, preservation of the state's
accusatory burden, respect for the personal dignity of the defendant and
the defendant's participation.(195) This Section highlights how the
current system of optional recusal in trials where the judge has
previously prosecuted the defendant undermines these primary values.

The instrumental theory of due process places the highest premium
on procedures that achieve accurate fact-finding in an efficient
manner.(196) Processes designed to efficiently arrive at truth are most
highly desired.(197) The Supreme Court adopted and defined the
instrumental view in Matthews v. Eldridge.(198) Matthews identified
three relevant factors to weigh in determining what process was due a
party in an administrative heating: first, the private interest affected
by the official action; second, the risk of erroneous deprivation of the
interest and the value additional safeguards might add; and third, the
burden on government that the additional safeguard would impose.(199)

In this context, the right involved is the defendant's
liberty interest, and his freedom from erroneous conviction. There is a
variable risk of erroneous deprivation (depending on the level of
involvement the judge had in the prior prosecution, and how effectively
she checks the factors Blanck notes(200)). This risk can be avoided by
mandating recusal pre-trial where the judge actively participated in the
defendant's previous trial. Arguably, the cost of a prophylactic,
mandatory recusal is lower than multiple appeals to determine (perhaps
fruitlessly) whether there was actual bias, or the appearance of bias
was so great as to mandate a new trial.

Another due process value (or as Jerold Israel calls it "a
cornerstone of the criminal justice system"(201)) is the discovery
of truth. This differs from the purely instrumental approach because the
search for truth does not tolerate bias in favor of efficiency.(202)
This search for truth probes into minute allegations of bias difficult
to root out, regardless of cost (such as the kind of bias explored in
this Comment).(203) As applied to Del Vecchio,(204) for example, that
might mean allowing the defendant intense and searching discovery in
order to probe every facet of Judge Garippo's attitude and actions
towards him. The search for truth alone is inadequate by itself to
promote a strong prophylactic recusal standard because it does not at
all account for appearances. In Del Vecchio II, as Judge Cummings
noted--conceding for argument's sake that no actual bias
existed--there was still an indelible stain over Del Vecchio's
death sentence merely because Garippo presided.(205) Thus, the search
for truth is not always paramount in the criminal process, both on
epistemological grounds and because truth finding may subvert fairness
goals such as "preservation of human dignity and personal
autonomy."(206)

The protection of human dignity is a cornerstone of the criminal
process, and a core non-instrumental value of due process.
Non-instrumental values do not focus on the result of accuracy, but
rather ensuring that the truth can be arrived at fairly using adequate
procedural safeguards.(207) Non-instrumental values primarily emphasize
a party's right to participate in the decision-making process.(208)

The non-instrumental approach emphasizes the appearance of
fairness as a key to due process.(209) Some commentators recognize the
Supreme Court's stamp of approval to recognition of these values:
"even if a given procedure does not clearly advance accuracy, it
generates `the feeling, so important to popular government, that justice
has been done.'"(210) To feel that justice has been done,
fairness must be guaranteed and delivered upon: "[t]he fact that
criminal justice procedures are fair is not sufficient; the procedures
must also be seen as fair (and fairly administered) by both its
participants and the public. The appearance of fairness ... is vital to
maintain the public confidence."(211) This appearance of fairness
is what distinguishes outlaws from the government. Government must play
by fair, neutral rules, even when those rules act to its detriment. If
it fails to honor those rules, or stacks the deck in its favor, it is
little better than the criminals it prosecutes, from a due process
standpoint.

As Professors Redish and Marshall point out, "[f]ew
situations more severely threaten [the appearance of fairness] than the
perception that a litigant never had a chance because the decisionmaker
may have owed the other side special favors."(212) If defendants
are perceived to have been convicted by judges for reasons of bias, and
not because they actually violated laws, institutional faith in the
justice system may be diminished, decreasing respect for the rule of
law.

To prevent this, the perception of fairness requires that a judge
be disqualified from a case if she has an identifiable potential
bias.(213) This Comment has already identified potential biases inherent
in a judge overseeing a case where she previously prosecuted the
defendant: revenge for failed prosecution; disappointment that exercises
of prosecutorial discretion resulting in leniency failed to assist in
the defendant's rehabilitation; and fear of looking
"soft" a second time in front of the electorate in a
competitive or retentive election.(214) Putting aside whether these
biases could be sufficiently avoided to guarantee a fair trial, the
appearance of unfairness still exists. Judges Mannion and
Easterbrook's majority and concurring opinions in Del Vecchio II
highlight the jurisprudential failure to take this appearance problem
seriously enough.(215)

Respecting the dignity of the individual is another cornerstone of
the criminal justice system.(216) Dignity includes the "basic needs
of the human personality, including ... freedom from humiliation and
abuse."(217) This element of due process is justified because
"all persons, including criminals, are entitled to governmental
respect for their dignity as an inherent element of the social compact
[that] provides the foundation for a democratic society."(218) In
the face of society's vigilant desire to solve crimes and impose
severe sanctions (sometimes at all costs) on suspects, human dignity
must be preserved by employing procedural safeguards.(219)

This means not subjecting an accused defendant to a trial where
the judge has previously prosecuted her. Where the judge participated as
a prosecutor in a previous trial, the judge likely drew negative
conclusions about the defendant in deciding to bring charges. She may
have harshly condemned the defendant in the courtroom or media,
challenged her veracity, or portrayed her as defective or immoral in
some way. To be tried by this same person does not keep the defendant
free from humiliation or abuse, nor does it protect her dignity.(220)

An interest that serves both instrumental and non-instrumental due
process values is the state's accusatorial burden.(221) Putting
greater burdens on the state acknowledges its greater resources,
enabling it to gather facts more easily. The burden is non-instrumental
in that it relies on the premise that the accused is innocent unless and
until the state meets very high burdens,(222) The purpose of the
presumption is to force judgment of the "accused's guilt or
innocence solely on the evidence adduced at trial."(223) Allowing
judges to try defendants they have prosecuted may undermine this burden.
Professor Blanck's conclusion and concerns about the effect of a
judge's knowledge of a defendant's inadmissible criminal past
(which would ordinarily come from second hand documentary evidence)(224)
can only be amplified where a judge knows about a defendant's
criminal record (or other bad acts) from previously prosecuting him.
Although empirical evidence is lacking on this point, the possibility of
lessening the burden is apparent.

Another non-instrumental value due process should serve is
equality.(225) At bottom, this embodies the ideal that a judge should
not favor one side's facts or contentions for reasons extrinsic to
their accuracy or legal merits.(226) "[S]imilarly situated
defendants must be treated alike ... distinctions drawn between
defendants must be based on grounds that are" not based on
impermissible factors.(227) This value also implicates instrumental
concerns--when a judge treats defendants unequally, the
"truth" is more difficult to ascertain.(228) Again, prior
participation with the defendant's previous prosecutions weakens
the defendant's opportunity to receive actual equal treatment, and
diminishes the appearance of fairness.

Other values due process in the criminal justice system seeks to
promote are predictability, transparence, rationality and
participation.(229) The first three factors are designed to facilitate
understanding of a judge's decision-making rationale.(230) The
public planning its future behavior, and other defendants awaiting
trial, must be confident that the "evidence ... [was] in fact
meaningful to the outcome," lest they fear that the rule of law is
supplanted by judicial fiat.(231) If the decision-maker is using
irrelevant or forbidden criteria stemming from bias against the
defendant (including first-hand knowledge of prior prosecutions), these
goals are badly compromised.

Finally, due process should protect participation.(232)
"IT]he participation value recognizes an individual's interest
in confronting the decision-maker in order to attempt to persuade her to
rule in his favor, or alternatively, to gain the psychological
satisfaction of having had some input into the decision."(233)
These goals are frustrated if the defendant has little or no chance of
changing the judge's mind. If the defendant believes the
prosecutor-turned-judge is biased against him because of his criminal
activity, he may not even attempt to meaningfully participate in his own
trial, believing that the outcome is preordained.

VI. CONCLUSION

A judge sitting in a case where he has previously prosecuted a
defendant implicates due process concerns if he actually participated in
the prosecution. The issues discussed here strike at deeply held notions
of due process and fairness--criminal defendants should not be able to
invoke them without showing that they are likely to be present. As the
Fifth Circuit noted in Mangum v. Hargett,(234) concerns about
non-financial or kinship bias are only relevant where the judge
participated in the earlier prosecution, and participation requires
"active involvement."(235)

Participation may take many forms--certainly Judge Garippo's
prosecutorial activities in George Del Vecchio's first murder trial
constituted "active involvement."(236) He exercised
substantial discretion in charging and sentencing. Other participation
includes the functions this Comment discusses: the decision to
investigate and attempt to indict; participation in the adversarial
state of the trial; contact with the media about the case; and
fulfillment of the requirements of victims' rights laws. If the
judge has had previous involvement of any of these types (or similar to
it) with the defendant, the concerns raised here are implicated.

Although courts have not recognized the problem, a criminal
defendant's right to a fair trial is compromised when the sitting
judge has previously prosecuted him. The bias, which may arise, or the
stain on the appearance of justice, is greater and more dangerous than
the bias we should allow. Became these dangers are personal and specific
between one defendant and one judge, it is always possible to find a
less interested decisionmaker. The failure to do so in George Del
Vecchio's capital murder case left a "cloud of doubt that now
and forever hangs over the Del Vecchio trial that the judge was
irremediably biased."(237)

As two academics have noted, "[t]o the extent that the [bias]
includes ... avoidable predisposition, courts should respond as in the
case of a judge with a direct financial interest in the outcome of the
case."(238) Although not all courts recognize this, heeding this
admonition fits within Supreme Court precedent, recognizes due process
and practical concerns, and can avoid placing serious doubts on the
fairness of criminal convictions--including those involving the ultimate
penalty.

(1) Judicial neutrality falls under the rubric of due process
guaranteed by the Constitution. "No person shall ... be deprived of
life, liberty, or property, without due process of law." U.S.
CONST. amend. V. "[N]or shall any State deprive any person of life,
liberty, or property, without due process of the law." Id. amend.
XIV, [sections] 1.

Under federal statute, parties may move for removal of a judge for
bias under 28 U.S.C. [sections] 144 (1994), which provides:

Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that the judge
before

whom the matter is pending has a personal bias or prejudice either
against

him or in favor of any adverse party, such judge shall proceed no
further

therein, but another judge shall be assigned to hear such
proceeding. The

affidavit shall state the facts and the reasons for the belief....
It

shall be accompanied by a certificate of counsel of record stating
that it

is made in good faith.

Section 28 U.S.C. [sections] 455 (1994) is also salient:

(a) Any justice, judge, or magistrate of the United States shall

disqualify himself in any proceeding in which his impartiality
might

reasonably be questioned.

(b) He shall also disqualify himself in the following
circumstances:

(1) Where he has personal bias or prejudice concerning a party
or person

knowledge of disputed evidentiary facts concerning the
proceeding...;

(2) Where he has served in governmental employment and in such
capacity

participated as counsel, advisor or material witness concerning
the

proceeding ...;

(2) See Martin H. Redish & Lawrence C. Marshall, Adjudicatory
Independence and the Values of Procedural Due Process, 95 YALE LJ. 455,
457 (1986). Professors Redish and Marshall argue that, at least in some
adjudicatory proceedings, a neutral arbiter is both a necessary and
sufficient factor in assessing whether a party has received procedural
due process. Id.

(7) Such an argument would not only be untenable but would fly in the
face of common practice. Of President Clinton's 187 judicial
nominees in his first term, nearly 40% were former prosecutors. See Jack
Quinn, cop Playing Politics on Clinton Judicial Choices, U.S.A. TODAY,
Apr. 23, 1996 at 11A.

(8) Interview with Abner J. Mikva, former White House Counsel, in
Chicago, Ill. (Dec. 18, 1996). Judge Mikva was intimately involved in
the selection of federal judges when he served as White House Counsel.
Among the attractive factors prosecutors bring to the federal bench are:
familiarity with law and procedure; demonstrated commitment to public
service; and respect in the legal community and general populace.

(26) Ward, 409 U.S. at 57. The town netted almost half of its
revenues from the fines. Id. at 58.

(27) Id. The Court held that a "possible temptation"
existed because the mayor's judicial responsibility and his
partisan interests in maximizing village revenue were "practically
and seriously inconsistent," thus making it impossible for the
defendant to get a fair trial. Id. at 60.

(28) Connally, 429 U.S. at 246.

(29) Id. at 251. While the Connally decision makes sense, it
highlights the fallacy of a bright line distinction between financial
bias and bias brought about by personal animus or prior involvement with
a defendant. From a normative standpoint, it is difficult to swallow the
principle that a defendant's right to a fair trial is compromised
more by a $5.00 pay-off than by a hypothetical former prosecutor's
outrage or vindictiveness at seeing a defendant in front of her whom she
once vigorously argued should be sent to jail for life.

(30) 475 U.S. 813 (1986).

(31) Id. at 820. In Aetna, the plaintiff, Margaret Lavoie, brought
suit against the defendant insurance company for failure to pay a claim.
Id.

(32) One of Alabama's Supreme Court Justices, Justice Embry, had
two on-going civil actions against insurance companies contemporaneously
with the appeal in Margaret Lavoie's case. Id. at 817. In one,
Justice Embry alleged bad-faith refusal to pay a claim arising from his
wife's loss of a valuable mink coat. In the other, Justice Embry
was the class representative for a suit on behalf of Alabama's
state employees alleging willful and intentional withholding of payment.
Both suits sought punitive damages. Id.

During one of Justice Embry's depositions, he stated that he
had had problems with insurance companies for "years and
years." Aetna contended that this showed that Embry was
constitutionally and impermissibly biased against it. Id. at 820. The
U.S. Supreme Court rejected this argument. Id. at 821.

Embry's potential recovery in the second suit was contingent
on the precedent established in the Alabama Supreme Court's
decision in Aetna Life Insurance Co. v. Lavoie, 470 So. 2d 1060 (Ala.
1985)--the case that went before the United States Supreme Court.

(33) Aetna, 475 U.S. at 820.

(34) Id. Whether the fact that Embry cast the deciding vote was the
source of the due process violation split the Supreme Court. The
majority suggested that if Embry's vote was not outcome
determinative, his potential bias might have been harmless. The
concurrence suggested otherwise. Compare Aetna, 475 U.S. at 831, with
id. at 83133 (Blackmun, J., concurring).

(44) The Court noted that the trial judge, who was caught up in the
web of the Chicago anti-corruption "Operation Greylord"
effort, was "thoroughly steeped in corruption." Id. at 1799.

(45) Id.

(46) Id. at 1797. Following the Supreme Court's Bracy decision,
the Illinois Supreme Court ruled that a defendant had in fact been
denied due process where the trial judge presided over a case where he
first accepted a bribe and then returned it to the defendant. People v.
Hawkins, 609 N.E.2d 999 (Ill. 1998).

(47) See Paul B. Lewis, Systemic Due Process: Procedural Concepts and
the Problem of Recusal, 38 U. KAN. L. REV. 381, 385 (1990). Lewis notes
that "(j)udicial prejudice based not only on financial interest,
but also on bias or relationship is antithetical to the rule of
law." Id.

Another justification for the focus on financial conflicts of
interest besides the "bright line distinction," is the fact
that at common law, this was the only type of bias that forced judicial
recusal. See, e.g., Bonham's Case, 77 Eng. Rep. 638 (K.B. 1608); 3
WILLIAM BLACKSTONE, COMMENTARIES *361. See also John P. Frank,
Disqualification of Judges, 56 YALE L.J. 605, 609 (1947) (explaining
that judges were only disqualified for direct pecuniary interest).

(48) Lewis, supra note 47, at 386. Differences of opinion over
whether due process protections of judicial neutrality extend beyond
financial conflicts are seen through the prism of whether one believes
due process is flexible, or whether it is inflexible and ought be cast
in stone as mandated by the dictates of common law and statutes. Compare
Redish & Marshall, supra note 2, at 457-68, with Del Vecchio v.
Illinois Dep't of Corrections, 31 F.3d 1363, 1389 (7th Cir. 1994)
(en banc) (Easterbrook, J., concurring), cert. denied, 115 S. Ct. 1404
(1995). Redish and Marshall certainly have the late Justice Frankfurter
on their side. Frankfurter wrote that due process is not confined to
"particular forms in which rights have heretofore been found to
have been curtailed for want of procedural fairness. Due Process is
perhaps the most majestic concept in our whole Constitutional system ...
it is ... a living principle not confined to past instances." Joint
Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 174 (1951)
(Frankfurter, J, concurring).

(49) See Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972); In
re Murchison, 349 U.S. 133, 136 (1955).

(52) Since 1953, the Supreme Court has allowed prisoners to attack
their state convictions collaterally through habeas corpus by
petitioning lower federal courts to review their trials for procedural
defects. See, e.g., Brown v. Allen,344 U.S. 443 (1953). The federal
habeas statute, as amended by the Anti-Terrorism and Effective Death
Penalty Act of 1996, is codified at 28 U.S.C. [subsections] 2241-66
(1994 & Supp. 1997). For a prisoner in state custody to obtain a
writ of habeas corpus, the petitioner must show that the law was applied
to him in a manner contrary to, or unreasonably in light of, a clearly
established federal law as interpreted by the Supreme Court. 28 U.S.C.
[sections] 2254(d)(1) (1994 & Supp. 1997).

Under habeas corpus jurisprudence, there are structural
constitutional errors and trial errors. A trial with a structural error,
on its face, violates a defendant's due process. See Arizona v.
Fulminante, 499 U.S. 279, 289-90 (1991) (White, J., dissenting).
Judicial bias is one of those structural errors, and cannot be harmless.
Id. at 290 (White, J., dissenting). Less important are "trial"
errors, which are harmless and do not require overturning a conviction
unless they have a "substantial and injurious" influence on
the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 622 (1993).

(57) Outside of 28 U.S.C. [sections] 455, it is unclear whether a
judge should sit in a case where he has been involved in the actual
prosecution of the defendant in that particular case, although it seems
that if the involvement is any more than mere formality, the judge will
be disqualified. See Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir.)
[hereinafter Bradshaw I], modified by 796 F.2d 100 (5th Cir. 1986)
[hereinafter Bradshaw II]. In Bradshaw I, the Fifth Circuit granted a
habeas petition on the grounds that a Texas Appeals Court judge should
not have heard a case where his name appeared on the prosecution's
brief, even though the judge's name appeared on the brief only as a
formality. The petitioner was not required to show any proof that the
judge was biased--"the appearance [of the judge's name]
undermined a fundamental aspect of our criminal justice system: a
judge's neutrality. The separation between the roles of judge and
prosecutor must be certain and inflexible." Bradshaw I, 785 F.2d at
1329. In Bradshaw II, the same court ruled that, in light of the Supreme
Court's decision in Aetna Life lnsurance Co. v. Lavoie, 475 U.S.
813 (1986), the fact that the appellate court judge's vote was not
outcome determinative made the error harmless, and thus reversed its
decision to grant the writ. 796 F. 2d at 101.

Concurring with the new result, one judge wrote that he disagreed
with the appearance of fairness rule used in Bradshaw I. Id. (Gee, J.,
concurring). Examining the facts, Judge Gee noted that there was no
possibility that an average person would be tempted or biased against
the defendant because his name appeared on the prosecution's brief.
Thus, the rule of "appearance of fairness" discussed in In re
Murchison is only applicable "where a real possibility of bias
exists against the defendant on the part of the judge." Id. at 102
(Gee, J, concurring). The judge wrote:

The rule [for disqualification] to apply is a prophylactic one
keyed to the ability and temperament of the average man, even though the
particular judge in question might be capable of rising above the
situation.... [W]here there is room for doubt about the existence of
bias I quite agree that appearance must be served. Doing so will
sometimes require one who feels no bias to disqualify himself despite
this. But where there is no room for doubt and no contention whatever of
actual bias, I do not believe that naked appearances should be held to
require a magistrate's recusal.

Id. at 102-03 (Gee,J, concurring).

Under 28 U.S.C. [sections] 455(b)(2), a judge must disqualify
himself where he has "served in governmental employment, and in
such capacity participated as counsel, adviser, or material witness
concerning the proceeding or expressed an opinion concerning the merits
of the particular case in controversy." See supra note 1. Thus, a
judge may not preside over hearings where he, as an Assistant U.S.
Attorney, had represented the government on an underlying matter
involving the criminal case now in front of him as a judge. Mixon v.
United States, 620 F.2d 486, 487 (5th Cir. 1980). Where the judge was
not "actively involved" in the underlying prosecution, courts
have held that he did not "participate" under the meaning of
[sections] 455, and no recusal is statutorily mandated. See Mangum v.
Hargett, 67 F.3d 80, 83 (5th Cir. 1995), cert. denied, 116 S. Ct. 957
(1996); United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir. 1988).
For an interpretation of a similar statute in the military court system,
see United States v. Kincheloe, 14 M.J. 40 (C.M.A. 1982).

(58) Carter v. Commonwealth, 641 S.W.2d 758 (Ky. Ct. App. 1982);
accord Woods v.Commonwealth 793 S.W.2d 809 (Ky. 1990). In Carter, the
Kentucky judicial recusal statute was interpreted to mandatorily
disqualify a judge from a case in which he previously prosecuted the
defendant even if there was "no hint in the record of any
impropriety or bias on the part of the [judge]," and the trial
judge had "little, if any, recollection of any involvement in the
[defendant's] plea bargaining." Carter, 641 S.W.2d at 759-60.
See also People v. Correlli, 343 N.Y.S.2d 555 (N.Y. App. Div. 1973);
accord People v. Smith, 503 N.Y.S.2d 72 (N.Y. App. Div. 1986).

(71) Id. at 166. By countering the defendant's claim of an
inherent appearance of bias with a review of the actual record, the
court seemingly conceded that the possibility of bias existed, but
nevertheless implied that the appearance of unfairness was either
irrelevant or nugatory.

(78) Fero v. Kirby, 39 F.3d 1462, 1478 (10th Cir. 1994), cert.
denied, 115 S. Ct. 2278 (1995). Here, the defendant's argument was
not premised on the judge's position as a former prosecutor, but
rather on the fact that the judge's son was a clerk for the
prosecution. Id. at 1475. The judge's brother-in-law had also filed
a wrongful death action against the defendant on behalf of the
victim's family. Id. These facts, while not exactly the same as
those this Comment is concerned with, are similar enough to make a
strong analogy.

(79) Id. at 1478 (citations omitted).

(80) 349 U.S. 133 (1955). See supra text accompanying notes 19-24 for
a discussion of In re Murchison.

(81) Fero, 39 F.3d at 1478.

(82) Id.

(83) Id.

(84) Id. at 1479-80. See supra text accompanying notes 9-18 for an
analysis of Tumey.

(90) Id. Judge Garippo's participation in the trial was also
troublesome because even though he remembered prosecuting Del Vecchio,
Del Vecchio did not remember being prosecuted by Garippo. At no point
during the trial did Judge Garippo reveal his earlier role as
prosecutor.

(91) Id.

(92) Id. at 1378.

(93) Id. at 1393 (Cummings, J., dissenting).

(94) Id. (Cummings, J., dissenting).

(95) Id at 1393-94 (Cummings, J., dissenting).

(96) Id. at 1371.

(97) See In re Murchison, 349 U.S. 133 (1954).

(98) Del Vecchio II, 31 F.3d at 1389.

(99) Id. at 1371. The majority opinion also mentioned judicial bias
was most problematic when the "lure of lucre" was involved.
Id. at 1372-73.

(100) Id. at 1372.

(101) Id.

(102) Id. at 1378-79.

(103) Id.

(104) Id. (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

(105) Id. at 1379-80.

(106) Id. For an interesting perspective on bias manifested through
physical activities by the judge not appearing in the written record but
which may influence the jury anyway, see Rachel Shoretz, Note, Let the
Record Show: Modifying Appellate Review Procedures for Errors of
Prejudicial Nonverbal Communications by Trial Judge, 95 COLUM. L. REV.
1273 (1995).

(109) Id. at 1392. (Cummings, J., dissenting). During the sentencing
phase of Del Vecchio's 1979 murder trial, evidence pertaining to
his confession in his 1965 murder trial was brought out. Del Vecchio
claimed that the confession was coerced, and thus should not be
admissible to prove a pattern of violent crimes. Judge Garippo refused
to grant a hearing to Del Vecchio on this issue. Del Vecchio I, 8 F.3d
at 516. With the federal government and states moving more and more
towards "three strikes and you're out" mandatory
sentencing, the likelihood that a prosecutor-turned-judge might be in
such a situation will likely increase.

This point raises the interesting complications of having elected
state judges. On the general question of due process and judicial
elections, see Scott D. Weiner, Note, Popular Justice: State Judicial
Elections and Procedural Due Process, 31 HARV. C.R.-C.L. L. REV. 187
(1996); see also Brown v. Doe, 2 F.3d 1236 (2d Cir. 1995) (defendant did
not have due process rights violated where judge used his conviction and
sentence in a reelection campaign advertisement). Of course, Del Vecchio
poses the thorny problem where a judge had the incentive to be
especially hard on the defendant so he did not appear to have let a
murderer off easy a second time. The political ramifications of having
twice allowed a defendant to "get off" are presumably ominous
enough to tempt many reasonable people into biased decisionmaking.

(156) Id. See also John Albrecht, The Rights and Needs of Victims of
Crime: The Judges' Perspective, 34 JUDGES J. 1, 29 (1995).

(157) Numerous members of Congress have introduced a Victims'
Rights Constitutional Amendment, which President Clinton endorsed during
the 1996 Presidential campaign. As of yet, the amendment has made no
headway in Congress. See Fichenberg, supra note 155, at 38.

(168) Jeffrey W. Stempel, Rehnquist, Recusal and Reform 53 BROOK. L.
REV. 589, 633 (1987). Although it is beyond the scope of this Comment,
Stempel's article contains interesting insights on this portion of
the recusal conundrum, and an extremely sharp criticism of then-Justice
Rehnquist's refusal to recuse himself in Laird v. Tatum, 408 U.S. 1
(1972), a case about which he testified before Congress as an Assistant
Attorney General for the Office of Legal Counsel in the Nixon
Administration. Stempel, supra, at 633.

(189) See Blanck, supra note 4, at 898-99. Blanck suggests that a
judge's attitude can "leak" to the jury as indicated by
the tone of his voice, or his verbal demeanor. Id. This might also occur
non-verbally through body language, shrugs, ignoring the defendant,
inattention and disapproving facial expressions. See Shoretz, supra note
106, at 1275-80.

(206) Israel, supra note 201, at 12. Preserving these values despite
the fact that they may hinder fact-finding is why defendants have
protections including the right against self-incrimination, protection
against warrantless searches and the right to counsel. Id.

(220) It is important to again emphasize that nothing is wrong with
prosecutors vigorously exercising their duties. The problem is the
incompatibility of exercising this duty against a defendant and later
exercising the far more restrained and dispassionate judicial function
against the same person.